Punjab-Haryana High Court
Harminder Pal Singh vs Palwinder Singh on 25 April, 2024
Neutral Citation No:=2024:PHHC:057582
273/2. 2024:PHHC:057582
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.5407 of 2023 (O&M)
Date of decision: 25.04.2024
Harminder Pal Singh .... Petitioner
Versus
Palwinder Singh .... Respondent
CORAM: HON'BLE MR. JUSTICE GURBIR SINGH
Present: Mr. Sudeep Mahajan, Advocate and
Ms. Saachi Mahajan, Advocate, for the petitioner.
Mr. Aditya Dassaur, Advocate, for the respondent.
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GURBIR SINGH, J.
1. Challenge in this revision petition is to the order dated
06.09.2023 passed by learned Appellate Authority, Jalandhar whereby the
appeal filed by the petitioner-tenant against the order dated 09.11.2022
passed by learned Rent Controller, Jalandhar, in an ejectment petition filed
by the respondent-landlord on the ground of non-payment of rent, has been
dismissed.
2. Brief facts necessary for the disposal of present revision
petition are that the respondent-landlord purchased the demised shop i.e.
SCF No.101, Guru Ravi Dass Market, Nakodar Road, Jalandhar, from the
earlier owner Sarabjit Kaur. The petitioner was already tenant there, but
since he failed to pay rent w.e.f. 01.08.2017, the respondent filed ejectment
petition. The tenant contested the petition on the ground that rent was paid
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upto February, 2018 @ Rs.10,500/- per month and thereafter, the landlord
refused to receive the rent. Petitioner was ready to pay the arrears of rent.
During the pendency of petition, vide order dated 05.05.2022, the
provisional assessment of rent was made, which is as under:-
Rent: Rs.10,500/- x 57 (months) Rs.05,98,500/-
Interest @ 6% Rs.86,782/-
Cost:- Rs.3,000/-
Total: Rs.06,88,282
The petitioner filed appeal against said order of assessment of rent, which
was dismissed vide order dated 28.10.2022. The rent petition was allowed
and order of ejectment was passed on the ground of non-payment of
provisionally assessed rent.
3. Learned counsel for the petitioner-tenant has argued that
provisional rent was assessed on 05.05.2022 and the next date fixed in the
case to pay the rent as per said order, was 28.07.2022. In the meantime, an
appeal was filed against the assessment of provisional rent which was
dismissed on 28.10.2022 with a direction to the parties to appear before the
Rent Controller for further proceedings on 09.11.2022 through their
respective counsels. Parties were not even present in appeal, whereas
learned Rent Controller had adjourned the case for 18.11.2022 for awaiting
the orders from the Appellate Authority. The case was neither fixed nor
shown in the cause list on 09.11.2022. Since the Appellate Authority did
not direct the tenant to pay the arrears of rent but had sent the file only for
the purpose of further proceedings, the Rent Controller was required to fix a
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date for the purpose of payment of provisionally assessed rent. The
petitioner-tenant was under the bona fide impression that he was required to
tender the provisional rent before the learned Rent Controller on
18.11.2022 as the date fixed before the learned Rent Controller was
18.11.2022 for awaiting the orders from the Appellate Authority. The
petitioner arranged money and got prepared draft for the amount of rent
assessed by the Rent Controller and came to the court on 18.11.2022 in
order to tender the same. But the order of ejectment was already passed in
his absence on 09.11.2022. It is submitted that the learned Rent Controller
could not pass ejectment order on 09.11.2022 but was required to wait till
18.11.2022 for payment of provisionally assessed rent. Against the order
dated 28.10.2022 passed by learned Appellate Authority, the petitioner also
filed Civil Revision No.477 of 2023 before this Court, however, vide order
dated 23.01.2023, it was withdrawn with liberty to raise all the pleas before
the Appellate Authority. In support of his arguments, he has relied on case
Rakesh Wadhawan Versus Jagdamba Industrial Corporation, 2002(1)
RCR (Rent) 514.
4. Learned counsel for the respondent-landlord has argued that
provisional rent was already assessed but before next date fixed for
payment of said amount, the tenant filed appeal which was dismissed and
the parties were directed to appear before the Rent Controller on
09.11.2022 itself. No further opportunity was required to be given to the
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tenant. While relying on the judgment in Rakesh Wadhawan's case
(supra), he submits that first date of hearing is the date on which the Court
applies its mind to the facts and controversy involved in the case. He
further submits that the Rent Controller has no jurisdiction to order
extension of time for payment of provisional rent.
5. I have heard the submissions of learned counsel for the parties
and have gone through the file.
6. The relationship of landlord and tenant between the parties and
the rate of rent as Rs.10,500/- per month, are not disputed. The learned Rent
Controller assessed provisional rent w.e.f. 01.08.2017 to 01.05.2022 and
the tenant was directed to pay the said amount on 28.07.2022. Before that
date, tenant being dissatisfied with the order of assessment, filed appeal
before the Appellate Authority. Said appeal was dismissed vide order dated
28.10.2022. Para No.16 of said judgment reads as under:-
"16. As a sequel to my findings above, present appeal fails
and the same is hereby dismissed with no orders as to costs.
Keeping in view the peculiar circumstances of the case, the
parties are left to bear their own costs. Impugned order passed
by learned Rent Controller is hereby affirmed. Memo of costs
be prepared. Parties through their respective counsel, are
directed to appear before learned Rent Controller on
09.11.2022 for further proceedings. Trial Court record be
returned with a copy of this judgment well before the date
fixed. Appeal file be consigned to the Record Room."
On 09.11.2022, the case was not shown in the cause list. Neither tenant nor
his counsel was present and order of ejectment was passed on the ground of
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non-payment of provisionally assessed rent. Para No.6 of said judgment
reads as under:-
"In view of the settled case law discussed above, this
Court finds merits in the contentions of the learned counsel for
the petitioner as it is clearly mentioned in the order dated
09.11.2022 of Ld. Court of Sh. Rajnish Garg, Appellate that
the parties are directed to appear on 09.11.2022 for further
proceedings. The further proceedings were in the present file
were to depositing of provisional rent as assessed the learned
Predecessor of the Court and accordingly, nothing remains to
be done in the present case and, therefore, the instant petition
succeeds and the same is hereby allowed and the respondent is
directed to vacate the premises in dispute as fully-detailed in
the head note of the petition, within a period of one month,
from the date of this order. Memo of costs be prepared. File be
consigned to Judicial Record Room after due compilation."
There is also no dispute that the Rent Controller had already fixed the date
as 18.11.2022 for awaiting the order from the higher court.
6.1 Para 25 of Rakesh Wadhawan's case (supra) reads as under:-
25. What follows from the abovesaid discussion is that the
proviso to clause (i) of sub-section (2) of Section 13 must be
read as obliging the Controller to assess, by means of passing
an order, the arrears of rent, the interest and the cost of
litigation-all the three, which the tenant shall pay or tender on
the first date of first hearing of the main petition following the
date of such assessment by Controller. Such order based on in
opinion formed prima facie by perusal of the pleadings and
such other material as may be available before the Controller
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on that day would be an interim or provisional order which
shall have to give way to a final order to be made on further
enquiry to be held later in the event of there being a dispute
between the parties calling for such determination. The
Controller would, however, at the outset assess the rent, the
interest and the cost of application in the light of and to the
extent of dispute, if any, raised by the tenant. Such amount, as
determined by Controller shall be liable to be paid or tendered
by the Controller on the 'first date of hearing' falling after the
date of the preliminary or provisional order of Controller. The
expression "the date of first hearing" came up recently for the
consideration of this Court in Mam Chand Pal Vs Smt. Shanti
Agarwal, 2002 (1) RCR (Rent) 326: (C.A. No.1187 of 2002
decided on 14.2.2002). It was held that 'the date of first
hearing' is the date on which the Court applies its mind to the
facts and controversy involved in the case. Any date prior to
such date would not be date of first hearing. For instance, date
for framing of issues would be the date of first hearing when
the Court has to apply its mind to the facts of the case. Where
the procedure applicable is the one as applicable to Small
Cause Courts, there being no provision for framing of the
issues, any date fixed for hearing of the case would be the first
date for the purpose. The date fixed for filing of the written
statement is not the date of hearing. Keeping in view the
interpretation so placed on 'the date of first hearing' obligation
cast by the proviso under consideration can be discharged by
the Controller on any date fixed for framing of the issues or for
hearing. It would be the obligation of the parties to place the
relevant material on record, in the shape of affidavits or
documents, which would enable the Controller to make a
provisional judicial assessment and place it on record to satisfy
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the spirit of the proviso. It would be desirable if the Rent
Controller specifically appoints a date for the purpose of such
assessment and order so that the parties are put on adequate
notice and bring the relevant material on record to assist the
Controller. A litigant cannot be expected to be ready to comply
with the order of the Controller on the very day on which the
order is made. How could he anticipate what order the
Controller would be making?
6.2 Keeping in view that due to filing of appeal, the date of
payment of provisional rent was postponed and no particular date was fixed
for payment of said amount and the learned Appellate Authority only asked
the parties to appear before the learned Rent Controller for further
proceedings, so under such circumstances, the learned Rent Controller was
required to fix a date for payment of provisional assessed rent as per order
dated 05.05.2022. Had the learned Appellate Authority asked the tenant to
pay the rent as assessed, position would have been otherwise. So, under
such circumstances, this Court finds that the tenant was caught unaware
that further proceedings would mean to tender the amount which was
already assessed. He also prepared the draft dated 17.11.2022 for the
amount of provisionally assessed rent for payment of said amount on
18.11.2022, the date already fixed before the Rent Controller for awaiting
the orders from the Appellate Authority.
6.3 I am of the view that in the case in hand, the Rent Controller
was required to fix a date for payment of amount of provisional rent
assessed as per order dated 05.05.2022. The learned Rent Controller failed
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to fix the date for said purpose and tenant was caught unaware. No person
should suffer due to act of any authority, so the orders passed by the courts
below deserve to be set aside.
7. The orders passed by the courts below are set aside and the
present revision petition stands allowed accordingly.
8. The parties are directed to appear before the Rent Controller
concerned on 15.05.2024. On said date, the tenant shall pay the arrears of
provisional rent assessed as per order dated 05.05.2022 and in case of
default, the order of ejectment would follow and if tenant makes
compliance, the enquiry shall continue in view of the spirit of case in
Rakesh Wadhawan's case (supra).
9. Pending application, if any, shall also stand disposed of.
(GURBIR SINGH)
JUDGE
April 25, 2024
sanjeev
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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